Election of accused not to give evidence or offer explanation
The power of a judge to comment upon the failure of the accused to give or call evidence is contained in s 20 Evidence Act 1995. The section applies only to criminal proceedings for indictable offences: s 20(1). Section 20(2) provides:
The judge or any party (other than the prosecutor) may comment on a failure of the defendant to give evidence. However, unless the comment is made by another defendant in the proceeding, the comment must not suggest that the defendant failed to give evidence because the defendant was, or believed he or she was, guilty of the offence concerned.
The prohibition in the second sentence of s 20(2) must be given full operation. The word “suggest” is a word of very wide application. Any comment made about the accused not having given evidence must not make any “reference, direct or indirect, and either by express words or the most subtle allusion” suggesting the accused did not give evidence because they were, or believed they were, guilty: RPS v The Queen (2000) 199 CLR 620 at [20]; Azzopardi v The Queen (2001) 205 CLR 50 at [56]; Wood v R [2012] NSWCCA 21 at [618].
If an accused does not give evidence at trial, it will almost always be desirable for the judge to warn the jury that the accused's silence in court:
- (a)
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is not evidence against the accused,
- (b)
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does not constitute an admission by the accused,
- (c)
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may not be used to fill gaps in the evidence tendered by the prosecution, and
- (d)
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may not be used as a make-weight in assessing whether the prosecution has proved its case beyond reasonable doubt: Azzopardi v The Queen at [51].
However, the judge should not go on to comment on the way in which the jury might use the fact that the accused did not give evidence: Azzopardi v The Queen at [51].
The direction is particularly important in those cases where the accused bears the onus of establishing a defence: Ahmed v R [2021] NSWCCA 280 at [44]. It cannot necessarily be implied from the right to silence direction: Ahmed v R at [48]–[53]. Cases where a judge may comment on the failure of an accused to offer an explanation will be rare and exceptional, and comment will never be warranted merely because the accused has failed to contradict some aspect of the prosecution case: Azzopardi v The Queen at [68]; Dyers v The Queen (2002) 210 CLR 285 at [5]; GBF v The Queen (2020) 271 CLR 537 at [23]. A failure to give a full direction on the decision of the accused not to give evidence may, in some cases, result in a miscarriage of justice: R v Wilson at [25], [35]; Martinez v R [2019] NSWCCA 153 at [113]. Examples of cases where the failure to give a full direction was said to be an error are Martinez v R, particularly at [114]–[117], and Ahmed v R at [44]–[53].
The accused has not given [or called] any evidence in response to the Crown’s case.
The Crown bears the onus of satisfying you beyond reasonable doubt that the accused is guilty of the offence charged.
The accused bears no onus of proof in respect of any fact that is in dispute. Although an accused person is entitled to give or call evidence in a criminal trial, there is no obligation upon them to do so. They are presumed to be innocent until you have been satisfied beyond reasonable doubt by the evidence led by the Crown that they are guilty of the offence charged. Therefore, it follows that the accused is entitled to say nothing and make the Crown prove their guilt to the high standard required.
The accused’s decision not to give evidence cannot be used against them in any way at all during the course of your deliberations. That decision cannot be used by you as amounting to an admission of guilt. You must not draw any inference or reach any conclusion based upon the fact that the accused decided not to give (or call) evidence. You cannot use that fact to fill any gaps that you might think exist in the evidence tendered by the Crown. It cannot be used in any way as strengthening the Crown case or in assisting the Crown to prove its case beyond reasonable doubt.
You must not speculate about what might have been said in evidence if the accused had given evidence (or what might have been said by [name of person] if that person had been called by the accused as a witness in the trial).
Where the accused has failed to give an explanation in response to the circumstantial case led by the Crown, a comment can be made on the inference that a jury can draw from that failure. The effect of the comment is that, in the absence of any explanation for the evidence produced by the Crown by way of facts that are peculiarly within the accused’s knowledge, the jury can more safely infer the guilt of the accused: Weissensteiner v The Queen (1993) 178 CLR 217; RPS v The Queen (2000) 199 CLR 620 at [35]; O’Grady v R [2012] NSWCCA 62 at [41]–[43]. This is usually referred to as a “Weissensteiner comment”. It will be a rare and exceptional case where such a comment would be appropriate. The mere fact that the accused could have contradicted facts in the Crown case is not sufficient to warrant such a comment: Azzopardi v The Queen at [68]. It will usually be prudent for the trial judge to ask the parties about the appropriateness of such a comment.
Because a Weissensteiner comment is so rarely appropriate and because what is said will depend upon the peculiar facts of the case, it is not appropriate to give a general direction. What is said should be made by way of a comment and the jury should be told they may ignore it: seeAzzopardi v The Queen at [49]–[50]. The comment should be in terms of a failure to explain rather than a failure to give evidence: Azzopardi v The Queen at [65]–[67].
If a comment is made, it should be placed in its proper context. That requires identifying the facts which are said to call for an explanation and giving adequate directions to the jury about the onus of proof, the absence of any obligation on the accused to give evidence, and the fact the accused does not give evidence is not an admission, does not fill gaps in the prosecution's proofs and is not to be used as a make-weight. Further, the comment should not go beyond that made in Weissensteiner, as adapted to refer to the failure to offer an explanation rather than the failure to give evidence: Azzopardi v The Queen at [67]. See suggested direction at [2-1010] above. See also O’Grady v R [2012] NSWCCA 62 for a case where the judge did not err by commenting on the failure to give an explanation.
See also, Criminal Practice and Procedure NSW at [3-s 20.1].